State v. Phillips

• Citation: 511 S.W.2d 841
• Decision Date: 22 July 1974
• Docket Number: No. 58146,No. 2,58146,2
• Parties: STATE of Missouri, Respondent, v. Freddie Joseph PHILLIPS, a/k/a Joseph Freddie Phillips, Appellant
• Court: United States State Supreme Court of Missouri

Page 841

511 S.W.2d 841

STATE of Missouri, Respondent, v. Freddie Joseph PHILLIPS, a/k/a Joseph Freddie Phillips, Appellant.

No. 58146.

Supreme Court of Missouri, Division No. 2.

July 22, 1974.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

Robert W. Richart, Joplin, for appellant.

STOCKARD, Commissioner.

Joseph Freddie Phillips, charged under the Second Offender Act, § 556.280 RSMo 1969, V.A.M.S., with robbery in the first degree in violation of § 560.120 RSMo 1969, V.A.M.S. was found guilty by a jury and sentenced by the court to imprisonment for a term of fifteen years.

Appellant does not challenge the sufficiency of the evidence. A jury reasonably could find that on April 18, 1972, appellant struck John Dobrauc with a metal pipe, and after knocking him down he removed $250 from his person.

Two days before trial an amended information was filed. The only change was to charge that appellant had previously been convicted of three felonies. At the trial the only proof of a prior felony was the conviction of appellant on December 3, 1946, for the theft of an automobile.

Appellant contends that the trial court abused its discretion in (1) failing to grant his request and motion for a bill of particulars and a continuance in order to prepare a defense to the amended information, and (2) in failing to quash the amended information because the allegations invoking the Second Offender Act pertained to a prior conviction which occurred twenty-six years previously.

The index to the transcript does not show a motion for a bill of particulars, and we do not find one in the transcript. In his argument to the court in support of the motion for a new trial, appellant's counsel referred to an oral motion for a bill of particulars, but we find no reference to its contents. There is nothing before us pertaining to a bill of particulars for appellate review.

At the time of trial counsel moved to quash the amended information on the ground that he did not have sufficient time to investigate whether appellant was represented by counsel at the time of the previous conviction and if he was whether that representation was effective. There was no specific request for a continuance, and in the transcript there is set out a journal entry in which it is stated that 'both parties announce ready for trial.'

The proof of the prior conviction was out of the presence of the jury. Counsel indicated to the court that appellant could not remember whether he was represented by counsel. The record of the previous conviction stated that he was represented by a lawyer by the name of Nelson Evans, and the parties agreed that he was deceased at the time of the present trial. The previous conviction resulted from a plea of guilty. The hearing on the motion for new trial in this case was not held until two months and sixteen days after verdict. There was nothing offered at that hearing by appellant to sustain any position he now takes, and there is nothing in the transcript to show for what reason appellant claims his representation was not effective. A continuance for the purposes requested by appellant, if in fact a continuance was requested, would not have been for two months. Yet in more time than that appellant produced nothing to the trial court to demonstrate prejudice. Under these circumstances appellant has not demonstrated an abuse of discretion by the trial court in proceeding to trial.

The fact that the previous conviction occurred in 1946 affords no basis to quash the amended information. The Second Offender Act places no time limit within which the previous conviction shall have occurred, and the fact that the prior conviction in this case occurred twenty-six years earlier is immaterial. State v. Humphries, 169 S.W.2d 350 (1943). We note that appellant did not move to strike the allegations of the previous conviction, but sought only to quash the amended information, including the charge of robbery. We find no abuse of discretion.

Appellant also objected to an amendment at the time of trial to allege that the amount of money taken in the robbery was $250 instead of $200.

Robbery in the first degree, § 560.120, RSMo 1969, covers 'taking the property of another from his person' without regard to the amount. 'In a robbery prosecution proof of the exact value of the property taken is unnecessary if it appears that the property taken had some value since the amount thereof is immaterial.' State v. Washington, 383 S.W.2d 518 (Mo.1964). In this case the jury was instructed that to find appellant guilty of robbery it had to find that John Dobrauc 'had possession of Two Hundred Fifty Dollars,' and that appellant 'took the property from John Dobrauc against his will by violence to his person, and by causing him to fear immediate injury to his person.' The result of the amendment changing the amount taken in the robbery in view of the instructions, resulted in the State assuming a greater burden than necessary, a matter about which appellant is not entitled to complain.

Appellant next asserts that Leon Wallace, a deputy sheriff, was not qualified as an expert witness, and that the court abused its discretion in permitting him to testify that in his opinion the fingerprints shown on the records of the alleged prior conviction were those of appellant. He asserts in argument: 'Can it be said that Leon Wallace has more expertise than the ordinary person or layman on the street? Perhaps. But how trustworthy can he be?'

The comparison of fingerprints is a proper matter for an expert witness, State v. Varner, 329 S.W.2d 623 (Mo.1959), and evidence of the correspondence or lack of correspondence of fingerprints, when testified to by an expert witness, is admissible to establish identity in criminal proceedings. 28 ALR2d 1123, § 3. The qualification of an expert is a matter within the sound discretion of the trial court. State v. Stevens,467 S.W.2d 10 (Mo.1971). Leon Wallace testified concerning his education and experience in identifying and comparing fingerprints. He clearly demonstrated that he was qualified. We note that appellant does not set forth what qualifications he claims were lacking, but in effect challenges only the weight to be given to his testimony; a matter for the trier of the fact, which in this case was the trial court.

Appellant also asserts that the trial court abused its discretion in giving Instruction No. 8, commonly referred to as the 'hammer' instruction. Appellant argues that the effect of the instruction was to force and coerce the members to thereafter reach a verdict in less than ten minutes.

The instruction was in the words and form which has frequently been approved. Appellant made no objection to the instruction, and made no objection when the court announced it would read the instruction to the jury. At that time the court had been informed that the members were divided eleven to one.

Aside from the absence of an objection to the giving of the instruction, we find no abuse of discretion on the part of the trial court. One juror, apparently the foreman, expressed the opinion that it would not be possible to reach a verdict, but at that time the jury had deliberated only one hour. The fact that a verdict was subsequently reached does not establish coercion. State v. Smith, 431 S.W.2d 74, 86 (Mo.1968). The court read Instruction No. 8 and returned the jury to 'deliberate a little further,' and after the verdict was returned the jury was polled and each member affirmatively stated that he or she agreed to the verdict. Under these circumstances we find no prejudicial error.

We now reach the only real issue in this case. At appellant's preliminary hearing he was present with his attorney. Chris Brownfield, age 15, was sworn as a witness, and he was represented by counsel. Both his counsel and the magistrate judge advised Chris Brownfield of his privilege against self-incrimination, but he elected to and did testify that he was present with and saw appellant strike John Dobrauc with a pipe and rob him. The proceedings at the preliminary hearing were not transcribed and no recording was made. At the trial of appellant, Chris Brownfield was called as a witness by the State, and after stating his name and address he asserted his privilege against self-incrimination. The trial court directed that he answer questions concerning whether he was attending school or was employed, which he did, but he refused to answer any questions concerning his knowledge of the facts pertaining to the charge against appellant. The State then called Grant Scott, the assistant prosecuting attorney who handled the preliminary hearing but who was not participating in appellant's trial. Mr. Scott testified, over objection of appellant, that at the preliminary hearing Chris Brownfield testified willingly under oath that he was with appellant on the evening of April 18, and that he saw appellant hit John Dobrauc with a pipe, knock him down, and take his billfold.

Appellant aserts on this appeal that the court erred 'in instructing Chris Brownfield to answer certain questions * * * after (he) has attempted to assert his privilege against self-incrimination.' He further asserts that this prevented him from receiving a fair and impartial trial; that it violated 'his constitutional right of due process of law by discrediting (him) in the eyes of the jury with a taint of guilt, which was highly inflammatory nd prejudicial * * * and misleading to the jury.'

Appellant argues that when the court instructed the witness to answer it 'caused an unfair inference and innuendo of guilt to settle like a cloud over the defendant's head in the eyes and minds of the jury to such a degree that the cloak of the presumption of innocence was literally ripped from the defendant giving the jury no other chance to reach any other verdict than guilty by association of a young fifteen-year-old who...